On May 20, 2004, Local 95, Office and Professional Employees
International Union,
AFL-CIO (Union), filed a complaint with the Wisconsin Employment Relations alleging that
the Wisconsin Rapids School District (District) and Scott Kellogg (Kellogg) had committed
prohibited practices within the meaning of Secs. 111.70(3)(a)1, 111.70(3)(a)3 and
111.70(3)(c),
Stats., as regards their treatment of a member of the Union's bargaining unit, Beth Thomas
(Thomas).

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Dec. No. 30965-A

On July 8, 2004, the Commission appointed Marshall L. Gratz, a
member of its staff,
to act as Examiner in the matter. On July 21, 2004, Respondents filed an answer and on
July 22, 2004, an amended answer, to the complaint. On July 29, 2004, Respondents
filed a
motion to dismiss the allegations of the complaint which related to facts occurring prior to
one
year before the filing of the complaint.

Pursuant to notice, the Examiner conducted a hearing in the matter on
August 10,
September 29, and November 4, 2004, at the District's offices in Wisconsin Rapids. At the
outset of the hearing the Examiner granted the District's and Kellogg's motion to dismiss the
allegations of the complaint relating to incidents occurring prior to May 20, 2003, but
permitted the Union to produce evidence with respect to such incidents in support of the
Union's claims regarding the lawfulness of the incidents that occurred on or after May 20,
2003. Also at the outset of the hearing, the Examiner granted the Union's motion to amend
the complaint to allege that the District and Kellogg reduced Thomas' hours for the 2004-05
school year, in violation of Secs. 111.70(3)(a)1, 3 and 111.70(3)(c), Stats., and allowed the
District and Kellogg to amend their answer to deny said allegation.

Following distribution of the hearing transcript, the parties filed briefs
and reply briefs.
The District and Kellogg objected to the scope of the Union's reply brief, which ultimately
led
to the parties agreeing to supplemental briefing. The supplemental briefing was completed on
April 13, 2005, marking the close of the record.

FINDINGS OF FACT

1. The Complainant Union is a labor organization with an office at
1551 West
Grand Avenue, Wisconsin Rapids, Wisconsin. At all material times, Wayne Pankratz
(Pankratz) was the Union's Business Representative.

2. The Respondent District is a public school district and a municipal employer
with
main offices at 510 Peach Street, Wisconsin Rapids, Wisconsin. The District is governed by
an
elected school board. At all material times, Dean Ryerson (Ryerson) has been the District's
Superintendent.

3. Among the 10 elementary schools operated by the District are three relatively
large schools, specifically, Howe, Mead, and Woodside.

4. Respondent Kellogg is an individual who, at all material times, has been
employed by the District as the principal of Howe and responsible for supervising, among
others,
the clerical and educational assistant personnel employed at that school. Kellogg reported
directly to Ryerson.

5. At all material times, the Union has been the certified representative of a
collective
bargaining unit including certain office, clerical and educational assistant employees of the
District,
including employees in the classifications of Office Aide I, Office Aide/Health

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Dec. No. 30965-A

Aide, Office Aide II, Noon Duty Aide (K-12), Secretary/Elementary Principal and
Instructional Aide.
The District and Union have been parties to a series of collective bargaining agreements,
including
one with a nominal term of July 1, 2001 through June 30, 2004. At all material times, said
agreements provided for reduced or eliminated health and dental insurance benefits for
employees
who work less than 28 hours per week.

6. At all material times, Howe, Mead, and Woodside schools each had one
Office Aide
II assigned to them. Office Aides at the smaller elementary schools were designated Office
Aide I
and generally worked fewer hours per week than the Office Aide IIs at the three large
schools.

7. At all material times since December 2000, Beth Thomas (Thomas) held the
Office
Aide II position at Howe.

8. At all material times, the Union's bargaining unit has included two positions in
the
office at Howe, in addition to that of Thomas: those of Elaine Fisa (Fisa), Secretary to the
principal,
and Sara Matthews (Matthews), Health Aide/Instructional Aide. Thomas, Fisa, and
Matthews
worked in close proximity to Kellogg, as did Howe Guidance Counselor Luceanna Eisberner
(Eisberner) and Howe Social Worker Barb Bondiolli.

9. At all material times, Thomas performed a range of duties under Fisa's
direction,
including handling, recording, depositing, and accounting for student lunch money, dealing
with
substitute teacher issues, handling/forwarding staff time cards, leave requests, and attendance
records, processing external and intra-office mail and deliveries, tracking and sometimes
storing
supplies, answering the telephone, responding to visitors, assisting with the care of sick or
injured
students, photocopying materials, and other general office tasks. In performing these tasks,
Thomas
from time to time was required to handle confidential student records and/or confidential
legal
documents. Office Aide IIs at Mead and Woodside performed similar but not identical duties
to
those Thomas performed at Howe.

10. At all material times, Matthews was employed at Howe on a part-time basis.
She
performed Instructional Aide duties for a classroom teacher for part of her work day and
Health Aide
duties for the remainder. Matthews was not employed to perform the duties of Office Aide.
However, from time to time, Matthews was called upon to assist Fisa and/or Thomas in
performing
their duties, especially during their absences. Matthews also worked as a parent volunteer at
the
Howe School during some daytime hours when she was not on the payroll. As a volunteer,
Matthews regularly spent from a few to several hours per week on laminating projects for
teachers
and/or assisting Eisberner in preparing student "prizes" related to various counseling-related
activities.

11. In January 2001, Thomas joined the Union's bargaining team and
participated
in
negotiations for the 2001-04 collective bargaining agreement that began in late winter or
early spring
2001 and ended in May 2002, when the 2001-04 agreement was ratified.

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Dec. No. 30965-A

12. In or about February 2001, Union business agent Pankratz received a
telephone call
from a Noon Duty Aide at Howe, who complained that some Aides had been required to
supervise
students outdoors for recess and/or lunch during severely cold weather. At some point
thereafter,
Pankratz passed this information along to Ryerson. During a break in a negotiation session
in the
same time frame, at or around 10 p.m., Ryerson telephoned Kellogg at home and asked him
whether
students at Howe were sent outside in sub-zero weather. Kellogg was upset by the telephone
call
and the next day called a meeting with Fisa and Thomas, at which he mentioned the
Superintendent's
telephone call, questioned Thomas about the basis for the complaint, asked Thomas whether
she had
made the complaint, and, when Thomas denied doing so, asked whether she knew who had.
At the
time of this meeting, Kellogg was aware that Thomas was the only Howe employee who was
a
member of the Union's bargaining team. Although Kellogg accepted Thomas' assertion that
she was
not the complaining party, he continued to believe that she had played a role in bringing the
issue
to Ryerson's attention, given her membership on the bargaining team and Ryerson's
reference to the
negotiations in his telephone call to Kellogg. Kellogg believed it was "irresponsible" for the
issue
to have been raised in negotiations without it first having been raised with him. The
District's cold
weather policy remained a topic of administrative discussion and directive thereafter.

13. On April 1, 2001, after Thomas had been working at Howe for about four
months,
she received her first annual written performance evaluation from Kellogg. She was rated
"Exceeds
Expectations" on two of the 22 applicable criteria ("interacts well with students" and
"telephone
techniques") and on the remaining criteria was rated "Satisfactory." Her overall performance
was
rated "Satisfactory." The evaluation contained no additional commentary.

14. At some point in the middle of the following (2001-2002) school year, the
Union
brought an issue to the bargaining table about increasing the pay grade of the Office Aide II
positions
and in support of that proposal conducted an investigation about the duties Office Aide IIs
were
performing. Pankratz asked Thomas to assist in the investigation. Thomas informed the
Union that,
among other things, she had from time to time been asked to perform the duty of checking
students
for head lice. The Union mentioned this to Ryerson during negotiations, and Ryerson in turn
had a
follow-up conversation with Kellogg. Shortly after that discussion, Kellogg directed Thomas
not to
perform the duty of checking for head lice. Kellogg was not otherwise involved in the issue
or in
deliberations about whether the Office Aide II position should be reallocated. Ultimately, the
Union
and the District agreed to reallocate the position to a higher pay grade as part of the
resolution of the
2001-04 collective bargaining agreement.

15. Prior to approximately January 2002, the District had maintained a student
lunch
system that required students to purchase lunch tickets at the office with cash for the days
they
wished to buy lunch. Fisa and Thomas shared the task of selling lunch tickets at Howe, and
the
system often resulted in numerous students standing in line at the office and interacting
individually
with office staff, especially on Mondays. Thomas was also responsible

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Dec. No. 30965-A

for the recordkeeping regarding the free-and-reduced lunch program for students who
could not
afford to purchase lunch. In connection with the lunch ticket system, Thomas also worked in
the
lunch room later in the day, punching and/or collecting the tickets, and later balancing the
cash
receipts with the recorded financial records.

16. In or about January 2002, the District implemented an automated lunch
system. At
this point, Thomas assumed primary responsibility for managing the financial aspects of the
lunch
program at Howe. The automated system permitted students to deposit cash intermittently
into a
receptacle at the office, which Thomas would regularly collect, tabulate, and record by
computer into
the students' individual "accounts." The students had a digital code which they entered into
the
computer as they passed through the lunch line. The new system eliminated the need for
students
to wait in line and for Thomas to interact with them on a daily basis. Thomas notified
students
(through their classroom teachers) when their balances needed replenishing. After
automation,
Thomas continued to operate the computer in the lunchroom itself, as part of the automated
system,
until some point early in the 2003-04 school year, when the District hired an additional
(fifth) Noon
Duty Aide and Thomas' hours were reduced from 30 to 28. Thereafter two Noon Duty
Aides
generally shared the task of operating the computer in the lunch room, although Thomas and
Fisa
would occasionally do so in order to maintain familiarity with its operation.

17. The automated lunch system saved the office personnel at Howe (primarily
Thomas)
some time by eliminating the need to sell lunch tickets to students every day and simplified
recordkeeping. However, the automated system added time for handling and accounting for
money
and for keeping students notified of their balances. While Kellogg asserted that the automated
lunch
system "drastically reduced" the amount of time spent on lunch-related office duties, Fisa and
Thomas testified that, on balance, the system did not reduce the amount of work or
"headaches" for
the office staff.

18. On or about February 21, 2002, Kellogg provided Thomas with her second
annual
written performance evaluation. She was rated "Exceeds Expectations" on five of the 22
applicable
criteria: "Take interest in job," "Strives to perform beyond minimum requirements,"
"Adjusts to
new or different assignments," "Willingness to adjust in a cooperative manner," and
"Maintains a
positive attitude at work." She was rated "Satisfactory" on the remaining 15 criteria and
received
an overall "Satisfactory" rating. The evaluation included the comment, "Beth has always
shown
willingness to learn and expand her skills," "Seems to adjust very well on 'those' hectic
days," and
"Beth has adjusted very well to Howe School. She is self motivated. She relates very well
with
everyone." Next to the "exceeds expectation" marks regarding her ability to adjust, Kellogg
inserted
the notation, "Automated Lunch Program."

19. At material times, Ryerson and other District administrators
have maintained
an ongoing concern about hourly employees adhering to their schedules and not incurring
potential overtime liability for the District. At some point in the spring of 2002, Pankratz
encountered some present and former Howe school employees, including some teachers, who

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Dec. No. 30965-A

mentioned to him that Fisa had been observed on several occasions working
outside normal
business hours. Pankratz, in turn, mentioned those reports to Ryerson during negotiations.
Shortly thereafter, Ryerson telephoned Kellogg about the issue of Fisa's hours. A day or so
after this conversation with Ryerson, Kellogg met with Fisa and Thomas, directed them not
to work any hours beyond their normal work day, asked them to sign a statement confirming
that they understood this policy, and directed them to surrender their building keys. Within
a month or two, Kellogg returned a master building key to Fisa, based upon his stated belief
that, besides the head custodian, another employee should have a master key for emergency
and security purposes. He did not return a key to Thomas, although she requested him to do
so. Thomas rarely if ever worked beyond normal business hours, and none of the reports or
the discussion among Pankratz, Ryerson, and/or Kellogg mentioned Thomas as having
worked
excess hours.

20. Prior to the start of school for the 2002-03 school year, the office furniture
at
Howe
had to be moved in order for new carpeting to be installed. After the carpet was installed
and as the
furniture was being moved back, Kellogg decided to reorient Thomas' computer such that
her back
would be to the counter when she was working at the computer. Kellogg testified that his
intention
was to allow Thomas to have fewer distractions while making financial entries and
performing other
work on the computer. Kellogg had not discussed this decision with Thomas prior to
implementing
it. When Thomas returned to work at the outset of the school year, she was upset about how
her
computer and desk had been reoriented. She asked Kellogg on two occasions during the first
several
weeks of the school year to permit her to return her computer to its previous orientation.
Kellogg
refused, stating, without further explanation, that the computer was placed the way he wanted
it.

21. Also at the outset of the 2002-03 school year, at Kellogg's direction, Fisa
prepared
a weekly work schedule for herself and for Thomas, which was designed to insure office
coverage
during rest and lunch breaks. Matthews as well as the school custodian also had daily work
schedules, though the custodian's may have been in existence at a much earlier date.

22. Also at the outset of the 2002-03 school year, consistent with a suggestion
from
Ryerson, Kellogg initiated a series of regular office staff meetings with Fisa and Thomas,
later
including Matthews. The first meeting was held on September 11, 2002. The agenda and
subsequent written "Weekly Office Update" followed a four-part format originated by
Kellogg: (1)
"Any problems?" (2) "Anticipate any problems?" (3) "Does the work meet the job
description?"
and (4), "Looking ahead." Kellogg presented Thomas' schedule to her at the first office staff
meeting that year.

23. Some time shortly before September 30, 2002, Thomas mentioned her
concern
about
the reorientation of her desk to Pankratz, who, in turn, mentioned it to Ryerson. Ryerson
telephoned
Kellogg to discuss the issue. In that conversation, Ryerson did not direct Kellogg to reorient
the
desk, but rather indicated that Kellogg was free to use his judgment as to how to promote
office
efficiency.

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Dec. No. 30965-A

24. On September 30, 2002, Kellogg held a meeting with Fisa and Thomas, at
which he
mentioned Ryerson's telephone call about the orientation of Thomas' computer and
questioned
Thomas about why she had approached the Union rather than him about the issue. Kellogg
stated
his view that, while Thomas was entitled to contact the Union, he thought that school-based
problems could be solved through better direct communication. In response to Thomas'
concern
about the computer placement, Kellogg stated that he had moved Thomas' computer so that
she
could concentrate better on counting the lunch money and entering data. The group also
discussed
Thomas' concern about having been given a weekly schedule. Kellogg agreed to return
Thomas'
computer and desk arrangement to its previous configuration. The "Weekly Office Update"
for that
meeting states, "Starting fresh as these issues will be buried. We all need to talk to each
other about
how we feel. If Elaine bites Beth's head off she needs to tell her. Weekly meetings."

25. Kellogg approved the agenda format for the office meetings of
October 11, 2002,
and November 4, 2002, and he added to the second formatted agenda item the following
phrase: "Anticipate any problems? Anything Wayne needs to know." "Wayne" referred to
Pankratz. As indicated on the agenda, Kellogg asked Thomas during those meetings whether
there was anything "Wayne" needed to know. This question caused Thomas discomfort and
she complained about it to Pankratz, who was also upset by it and asked Ryerson to
intervene.
Ryerson then telephoned Kellogg, after which Kellogg no longer asked during these meetings
whether there was "anything Wayne needs to know" and no longer included the notation in
the Weekly Office Updates.

26. On or about March 7, 2003, Kellogg provided Thomas with her annual
written
performance evaluation. Thomas was rated as "Exceeds Expectations" on seven of the 22
applicable
criteria, including four of the six criteria relating to "Interpersonal Communications." She
was rated
"Satisfactory" on the remaining criteria and her overall rating was in the lower range of
"Exceeds
Expectations." The written commentary included, under "Dependability," the comment,
"good
example ­ award pins." Under the general rubric "Interpersonal Communications" and
the sub-rubric "Maintains confidentiality," Thomas was marked "Satisfactory," with the
following additional
written comment: "Reminder: confidentiality is extremely important while working in the
office
and being accessible to information about students, staff and issues. Basically what is heard
in the
office stays in the office." In his testimony, Kellogg could not recall specifically what had
prompted
him to make that comment. At the time Thomas received this evaluation, she asked Kellogg
whether
something specific had occasioned a confidentiality concern on his part, and Kellogg replied
that his
comment was just a general reminder to everyone about the importance of confidentiality.

27. On one occasion in the spring of 2003, Kellogg observed Thomas looking at
a
document in a manner that Kellogg interpreted as "reading" it. The document contained
confidential
student information. Thomas had been requested by Eisberner to photocopy only certain
pages of
the document and was looking through the document for the correct pages. Without
investigating
whether his perceptions of Thomas' behavior were accurate, Kellogg verbally reprimanded
Thomas
for reading confidential student information.

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Dec. No. 30965-A

28. On May 15, 2003, Kellogg issued a written reprimand to Thomas for having
assisted
Eisberner, without her objection, in trying to physically control an emotionally disturbed
student.
In the document, in addition to comments about the specific incident, Kellogg also stated,
"Only staff
members (teachers, aides, counselor, social worker, principal, secretary) should discuss or
handle
confidential information. At no time should there be sharing of confidential information
outside of
school." The record does not contain information about Kellogg's reason for inserting this
comment.

29. The District has experienced budgetary problems in recent years. In early
2003,
Ryerson notified the principals of the District's schools that the District needed to reduce
expenditures and sought recommendations for reductions in the upcoming (2003-04) school
year that
would not affect instructional programs. The District asked the elementary principals to
brainstorm
as a group for resource savings recommendations. Individual schools or principals were not
required
to meet any established targets. Kellogg decided that the office at Howe could function with
fewer
hours from Thomas, assertedly because of the efficiencies that flowed from the automated
lunch
program. He initially recommended to Ryerson that Thomas' hours be reduced from 30 to
25 per
week. After discussing the matter with Kellogg, Ryerson decided to recommend reducing
Thomas'
hours from 30 to 27.5 per week. Although the Union had been told by District officials that
school
principals would be speaking with those bargaining unit members who would lose hours
and/or
benefits, Kellogg did not at any time inform Thomas that she could or would be experiencing
a
reduction in her hours for 2003-04.

30. A reduction of hours below 28 resulted in a loss of contractual benefits and
permitted
the affected bargaining unit member to exercise seniority rights to bump into another position
in
order to retain benefits. At the time Kellogg initially recommended reducing Thomas' hours
for the
2003-04 school year, he may not have been aware of the effect the reduction would have on
Thomas'
benefits.

31. By letter dated June 12, 2003, the District notified Thomas that her hours
were
reduced for the 2003-04 school year from 30 to 27.5. Pankratz immediately protested to
Ryerson
that this reduction would be viewed by the Union as unlawful retaliation for Thomas'
protected
activity. Ryerson thereafter successfully recommended to the District's School Board that one
half
hour per week be restored to Thomas' schedule for 2003-04, which brought her hours to 28
per week
and thereby avoided any loss of insurance benefits.

32. The District reduced the hours of several other members of the Union's
bargaining
unit for 2003-04, but did not reduce the hours of either of the other two Office Aide IIs (at
Meade
and Woodside). The automated lunch system had been implemented at Meade and Woodside
as
well as Howe. At Meade, the Office Aide II continued to operate the computer in the
lunchroom as
part of the automated system. The record does not indicate whether or not the Office Aide II
continued to operate the lunchroom computer at Woodside.

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Dec. No. 30965-A

33. Prior to the 2003-04 school year, the District employed four Noon Duty
Aides
at
Howe, each of whom worked 7.5 hours per week. For some years prior to that, Kellogg
had been
requesting that the District employ a fifth Noon Duty Aide at Howe, for safety and security
reasons.
He continued to advance this request for the 2003-04 school year and was successful. After
the fifth
Noon Duty Aide was hired, Thomas no longer operated the computer in the lunchroom on a
regular
basis. Thomas testified that she did not ask to be assigned the additional hours in the
lunchroom for
2003-04, because her hours already had been restored to 28 per week, thus restoring her
benefits.

34. At the outset of the 2003-04 school year, on August 27, 2003, Kellogg held
a
meeting
with the Thomas and Fisa. During that meeting he told Thomas that he had heard that
Thomas had
told another individual that Thomas believed her hours had been reduced in retaliation for the
Union
complaining to Ryerson about the cold recess or other issues. Kellogg asked Thomas
whether she
had made that statement, which she denied. Kellogg then stated that he had recommended
the hours
reduction for budgetary reasons and because he believed the automated lunch system required
fewer
hours from Thomas. He also stated that he would check with the individual who had reported
Thomas' alleged statements.

35. As a result of the reduction of two hours per week in Thomas' schedule in
2003-04,
there were occasions when the mail did not get finished and/or supplies did not get
inventoried/stored promptly, but the reduction did not cause major productivity problems.

36. On or about September 2, 2003, Kellogg met with Fisa, Thomas, and
Matthews about
distribution of office tasks and what role Matthews could appropriately play that would not
intrude
into Office Aide duties. Kellogg also emphasized that all staff would need to "streamline"
their work
and minimize distractions and that care should be taken to make sure that the office was
covered
during staff lunch and breaks.

37. In or about early December 2003, a student's grandmother delivered a
custody
order
to the school office and asked that a copy be made for the District and the original returned
to her.
Thomas photocopied the document and returned the original to the grandmother. Thomas
asked Fisa
what to do with the photocopy, and Fisa, not realizing that a copy had not been provided to
Eisberner, told Thomas to place the copy in the student's file, which Thomas did. Shortly
thereafter,
the grandmother attended a meeting with Eisberner, who told the grandmother that the school
had
not received the custody order. This upset the grandmother. Eisberner was embarrassed that
she had
not received the document and brought the incident to Kellogg's attention.

38. Also in or about early December 2003, at Fisa's request, Kellogg gave Fisa
permission to work some evening hours in lieu of some regularly scheduled day time hours,
in order
to accommodate Fisa's need to care for a sick dependent at home. Fisa normally would
transmit her
time sheet through the inter-office mail and receive it back the same way, approved by
Central
Office. Thomas routinely handled the inter-office mail in Fisa's absence and routinely came
into
contact with staff time sheets in that way. In this instance, sensitive to the fact that Fisa's
work
outside normal work hours had been a topic of discussion between the

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Dec. No. 30965-A

Union and Ryerson in the past, Kellogg planned to deliver the time sheet personally to
Central Office
for approval. He would seal the return envelope with a cellophane tape "X" on the back,
and ask
Matthews to retrieve this envelope from the "blue bin" and return it to Fisa directly.
Thomas was
not aware of the special marking or the confidential status of this mail item. On the evening
before
the time sheet was due, Fisa worked evening hours and left the time sheet face down on the
office
counter. Thomas came in the next morning and, in the normal course of business, saw the
time sheet
on the counter and began to place it in an inter-office envelope, but Kellogg intervened and
said he
would hand deliver it to Central Office. When the cross-taped envelope addressed to Fisa
was
returned on December 16, 2003, in the regular inter-office mail, Fisa was not at work. The
envelope
became mingled inadvertently with other used envelopes in a stack of recycled inter-office
mail
envelopes. At Kellogg's direction, Matthews sought Thomas' assistance in looking for the
envelope.
Neither Kellogg nor Matthews explained to Thomas that the envelope or its contents were
confidential. Thomas found the envelope in the recycle pile and had begun to open and look
at its
contents when Matthews noticed that Thomas had the envelope and asked for it. Matthews
reported
to Kellogg that Thomas had opened and examined the contents of the envelope.

39. The next day, December 17, 2003, Kellogg called Thomas into a meeting
also
attended by Matthews and Eisberner. At the outset of the meeting Kellogg made Thomas
aware that
her conduct would be the focus of the meeting, whereupon she asked for a Union
representative.
When the meeting reconvened later that day with a Union representative present, Kellogg
criticized
Thomas for opening an envelope addressed to Fisa, directed Thomas not to open any mail
that was
not addressed to her (Thomas), and stated that he had a general concern with Thomas about
confidentiality. He also criticized Thomas for having filed the custody photocopy rather than
giving
it to Eisberner. According to Kellogg's notes from the meeting, he stated to the effect that
"Other
information heard in the office and is confidence [sic] in nature should NOT be shared."

40. In or about January 2004, Ryerson again instructed the principals of the
District's
schools to recommend budget reductions for the upcoming (2004-05) school year that would
not
affect instructional programs. The process of preparing recommendations was similar to the
one
followed in the previous school year.

41. On or about February 16, 2004, Kellogg provided Thomas with her fourth
annual
written performance evaluation. He rated her "Satisfactory" on each of the 22 applicable
criteria and
"Satisfactory" overall, with no additional commentary of any kind.

42. Over the course of the 2003-04 school year, Kellogg became increasingly
less
communicative with Thomas, although he maintained a professional demeanor during the
conversations that were required in the course of business. By April 2004, he seldom spoke
to her
unless absolutely necessary. Kellogg's manner with other office personnel was more cordial
and
conversational than it was with Thomas.

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Dec. No. 30965-A

43. In early spring, 2004, Kellogg recommended that Thomas' hours be reduced
for the
upcoming (2004-05) school year from 28 to 20 hours per week, which would reduce and/or
eliminate
her eligibility for certain fringe benefits and make her eligible to exercise bumping rights into
a
position with full benefits, if available. Kellogg did not recommend reducing the hours of
any other
staff at Howe and did not consider recommending the reduction of hours of the fifth Noon
Duty Aide
so that Thomas could resume operating the lunchroom computer as she had prior to 2003-04
and
thus retain those hours. Although the hours of many members of the Union's bargaining unit
were
reduced for the 2004-05 school year, the hours of the other two Office Aides II (at Woodside
and
Mead) were not reduced. Kellogg's stated basis for recommending Thomas for an additional
reduction was the efficiencies from the automated lunch system that had been implemented in
2002,
as well as other efficiencies he had implemented at Howe, such as having teachers open and
inventory their own materials upon delivery to the school, having lunch-related messages to
students
placed in the teachers' mailboxes rather being hand-delivered by Thomas, and having
catalogs and
magazines placed on tables from which teachers could choose materials they wanted to use,
rather
than having Thomas distribute these bulky materials into the teachers' mailboxes. Kellogg
did not
discuss this reduction with Thomas at any time in connection with formulating or conveying
his
recommendation.

44. At the time Kellogg recommended that Thomas' hours be reduced for the
2004-05
school year, he was aware that a reduction in hours below 28 per week would reduce or
eliminate
her eligibility for certain contractual benefits.

45. By letter dated July 22, 2004, the District informed Thomas that her hours
were
reduced from 28 to 20 for the 2004-05 school year. Thomas lost dental insurance entirely
and her
contribution toward her health insurance premium was increased.

46. During the first several weeks of the 2004-05 school year, the office staff at
Howe
was unable to keep up with the regular work load in addition to the tasks traditionally
associated with
the beginning of the school year. The difficulties were aggravated by a new task originating
that
school year, i.e., collecting registration fees, which was added to Thomas' duties. Matthews
was
called upon to assist Fisa and Thomas in performing office duties on a frequent basis during
that
period of time. The "Weekly Update" for September 7, 2004, reflects that Kellogg had
decided to
train Matthews how to operate the automated lunch system. The reduction in Thomas' hours
directly
contributed to the workload problems experienced by the office staff at Howe during this
period of
time.

47. Handling of confidential documents in the mail and for photocopying
purposes
had
consistently comprised a small portion of Thomas' work from the time she had assumed the
her
position of Office Aide II at Howe. Despite Kellogg's stated concerns about Thomas
handling
confidential documents, any reduction in those duties that occurred between September 2002
and
September 2004 was minimal.

48. When Kellogg recommended reducing Thomas' hours from 28 to 20 for the
2004-05
school year, Thomas' work had not decreased sufficiently from the lunchroom

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Dec. No. 30965-A

automation, Kellogg's other efficiencies, or the minimal reductions in confidential
duties to warrant
so substantial a reduction.

49. Ryerson and the School Board relied upon Kellogg's recommendation in
making and
implementing the decisions to reduce Thomas' hours from 30 to 28 for the 2003-04 school
year and
from 28 to 20 for the 2004-05 school year.

Based upon the foregoing Findings of Fact, the Examiner makes the following

CONCLUSIONS OF LAW

1. The Respondent District is a "municipal employer" within the meaning of
Section
111.70(1)(j), Stats.

2. The Respondent Scott Kellogg was at all times an agent of the Respondent
District
and acted within the scope of his authority as an agent of the Respondent District, within the
meaning of Sec. 111(1)(j), Stats.

3. Beth Thomas was engaged in lawful, concerted activity for the purpose of
collective
bargaining or other mutual aid or protection, within the meaning of Sec. 111.70(2), Stats.,
when she
engaged in (or was believed by Kellogg to have engaged in) the following activities:

a. participating in the Union's negotiations team for the 2001-04
collective bargaining agreement,

b. (was mistakenly believed by Kellogg to have) reported to the Union
that bargaining unit members had been required to supervise children outdoors during
excessively cold weather,

c. reporting to the Union that she had been asked to perform the duty of
checking for head lice,

d. complaining to the Union and seeking its assistance when her desk
and computer had been rearranged,

e. (was believed by Kellogg to have) reported to the Union about Fisa
working outside of regular hours,

f. complaining to the Union and seeking its assistance when Kellogg had
included the phrase, "anything Wayne needs to know," in setting the agenda for the
regular office meetings at Howe,

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Dec. No. 30965-A

g. expressing (or believed by Kellogg to have expressed) her belief to
other employees and/or to the Union that her hours reduction for the 2003-04 school
year had been retaliatory, and

h. requesting Union representation at the December 17, 2003 meeting
with Kellogg.

4. Kellogg was aware of Thomas' lawful, concerted activity as set forth in
Conclusion
of Law 1.a. through h., above.

5. Kellogg was not hostile toward Thomas' participation on the Union's
negotiating
team, in and of itself, or toward Thomas' request for Union representation at the December
17, 2003,
meeting, in and of itself.

6. Kellogg was hostile toward Thomas' exercise of lawful, concerted activity as
set forth
in Conclusion of Law 1.b. through g., above.

7. Kellogg's decision to recommend that Thomas' hours be reduced from 30 to
25 for
the 2003-04 school year was motivated at least in part by hostility toward Thomas for her
lawful,
concerted activity, and therefore discriminated against Thomas in violation of Secs.
111.70(3)(a)3
and 1, Stats.

8. But for Kellogg's recommendation, which was motivated at least in part by
hostility
to Thomas' lawful, concerted activity, Ryerson would not have recommended to the School
Board
that Thomas' hours be reduced for the 2003-04 school year, nor would the School Board
have
accepted that recommendation. Accordingly, the District violated Sec. 111.70(3)(a)3, and,
derivatively (3)(a)1, Stats., by reducing Thomas' hours for the 2003-04 school year from 30
to 28
per week.

9. Kellogg's meeting with Thomas on December 17, 2003, and his oral
reprimand
during that meeting regarding Thomas' failure to maintain confidentiality were motivated, at
least
in part, by hostility toward Thomas for her lawful, concerted activity, and therefore
discriminated
against Thomas in violation of Sec. 111.70(3)(a)3 and, derivatively, (3)(a)1, Stats.

10. Kellogg did not remove a significant amount of confidential duties from
Thomas on
or after December 17, 2003, and therefore did not discriminate against Thomas in that
regard, in
violation of Secs. 111.70(3)(a)3 and/or 1, Stats.

11. Kellogg's intentionally limited conversation/interaction with Ms. Thomas
during the
2003-04 school year did not constitute discrimination within the meaning of Secs.
111.70(3)(a)3
and/or 1, Stats., and did not violate those provisions.

Page 14

Dec. No. 30965-A

12. Kellogg's decision to recommend that Thomas' hours be reduced from 28 to
20 for
the 2004-05 school year was motivated at least in part by hostility toward her lawful,
concerted
activity and therefore discriminated against Thomas in violation of Sec. 111.70(3)(a)3 and,
derivatively, (3)(a)1, Stats.

13. But for Kellogg's recommendation, which itself was motivated at least in
part
by
hostility to Thomas' lawful, concerted activity, Ryerson would not have recommended to the
School
Board that Thomas' hours be reduced from 28 to 20 for the 2004-05 school year, nor would
the
School Board have accepted that recommendation. Accordingly, the District violated Sec.
111.70(3)(a)3 and, derivatively (3)(a)1, Stats., by said reduction in Thomas' hours.

14. In taking the actions set forth in Conclusions of Law 7, 9, and 12, above,
Kellogg was
acting within the scope of his authority as an agent of the District. Accordingly, Kellogg's
conduct
did not violate Sec. 111.70(3)(c), Stats.

Based upon the foregoing Findings of Fact and Conclusions of Law, the Examiner
makes and
issues the following

ORDER

1. To remedy its violation of Secs. 111.70(3)(a)3 and 1, Stats., unless the Union
and
District agree otherwise in writing, the Respondent Wisconsin Rapids School District shall
immediately:

a. Cease and desist from discriminating against Beth Thomas or
any of its
employees represented by OPEIU Local 95 for engaging in lawful, concerted
activity.

b. Immediately take the following affirmative action which the
Examiner finds
will effectuate the purposes of the Municipal Employment Relations Act:

(1) Offer to restore to Beth Thomas the 10
hours per week
of work as an
Office Aide II by which her hours were reduced (by two beginning in
the 2003-04 school year and by an additional eight beginning in the
2004-05 school year), along with all seniority and other rights and
privileges associated with those additional 10 hours.

(2) Make Thomas whole for all wages and benefits she lost
due to the
District's unlawful reductions of her hours by paying her an amount
of money equal to the difference between the wages and benefits she
would have earned and received had her hours not

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Dec. No. 30965-A

been unlawfully reduced by two beginning in the 2003-04 school year
and by an additional eight beginning in the 2004-05 school year, plus
interest at the rate of twelve percent per year
(1)
on said amount from
the dates of the respective initial reductions to the date she is offered
the restoration of hours specified in 1.b.(1), above.

(3) Expunge from Beth Thomas' personnel file any reference
to the
December 17, 2003 meeting.

(4) Notify all of its employees represented by OPEIU Local
95, by
posting in conspicuous places in District facilities where such
employees generally congregate copies of the Notice attached hereto
and marked "Appendix A." The Notice shall be signed by the
District Administrator and shall be posted immediately upon receipt
of a copy of this Order and remain posted for thirty (30) days
thereafter. Reasonable steps shall be taken by the District to ensure
that said notices are no altered, defaced, or covered by other material.

(5) Notify the Wisconsin Employment Relations
Commission, in writing,
within twenty (20) days following the date of this Order, as to what
steps have been taken to comply with it.

2. Except as noted in 1, above, the amended complaint in this matter is
dismissed.

Dated at Shorewood, Wisconsin, this 22nd day of January, 2008.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Marshall L. Gratz, Examiner

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Dec. No. 30965-A

APPENDIX "A"

NOTICE TO ALL EMPLOYEES OF
THE

WISCONSIN RAPIDS SCHOOL DISTRICT

REPRESENTED BY OPEIU LOCAL
95

Pursuant to an Order of the Wisconsin Employment Relations Commission, and in
order
to effectuate the purposes of the Municipal Employment Relations Act, we hereby notify our
employees represented by OPEIU Local 95 that:

1. WE WILL NOT discriminate in violation of Secs. 111.70(3)(a)3
and 1, Stats.,
against Beth Thomas or any of our employees represented by OPEIU Local
95 for engaging in lawful, concerted activity.

2 WE WILL immediately offer to restore to Beth Thomas the 10
hours per
week of work as an Office Aide II by which her hours were reduced (by two
beginning in the 2003-04 school year and by an additional eight beginning in
the 2004-05 school year), along with all seniority and other rights and
privileges associated with those hours.

3. WE WILL immediately make Thomas whole, with interest at
12% per year,
for all wages and benefits she lost due to the District's reductions of her hours
as an Office Aide II by two beginning in the 2003-04 school year and by an
additional eight beginning in the 2004-05 school year.

4. WE WILL immediately expunge from Beth Thomas' personnel
file any
reference to the December 17, 2003 meeting.

Dated this ___ day of _____________, 2008

WISCONSIN RAPIDS SCHOOL DISTRICT

Superintendent

THIS NOTICE MUST REMAIN POSTED FOR THIRTY (30) DAYS
FROM THE DATE
HEREOF AND MUST NOT BE ALTERED OR COVERED BY ANY OTHER
MATERIAL.

Page 17

Dec. No. 30965-A

WISCONSIN RAPIDS SCHOOL DISTRICT
(KELLOGG)

MEMORANDUM ACCOMPANYING FINDINGS
OF FACT,

CONCLUSIONS OF LAW AND
ORDER

The Union's amended complaint, limited by the dismissal of allegations outside the
one-year
limitations period, sets forth the following alleged prohibited practices:

1. On and after May 20, 2003, Kellogg effectively recommended
that Thomas'
work hours be reduced from 30 to 28 hours per week for the 2003-04 school
year, at least in part in response to Thomas' lawful, concerted activities, in
violation of Sec. 111.70(3)(a)3 and 1, Stats.

2. On or about December 17, 2003, Kellogg reprimanded Thomas
for breaching
confidentiality and removed confidential duties from Thomas, at least partly
in response to Thomas' lawful, concerted activities, thereby interfering with
the rights of employees to engage in lawful, concerted activities and also
discriminating against Thomas for having so engaged, in violation of Sec.
111.70(3)(a)3 and 1, Stats.

3. By approximately April 2004, Kellogg was refusing to interact
with Thomas
at the office except where absolutely necessary, at least partly in response to
her lawful, concerted activities, which created an adverse working
environment and thus interfered with employees in the exercise of their rights
to engage in such activities, in violation of Sec. 111.70(3)(a)1, Stats.

4. In and after the spring of 2004, Kellogg effectively
recommended that
Thomas' hours be reduced from 28 hours to 20 hours per week for the 2004-05 school year
at least partly in response to her lawful, concerted activities,
in violation of Sec. 111.70(3)(a)3 and 1, Stats.

The Union also contends Kellogg is individually responsible for the foregoing
prohibited
practices, pursuant to Sec. 111.70(3)(c), Stats.

I. The Sections (3)(a)3 and 1 Allegations

Although the Union has cast these allegations under the rubric of both Sec. (3)(a)1
(interference) and Sec. (3)(a)3 (discrimination), all four claims are essentially rooted in the
contention that the District (through Kellogg) took adverse action against Thomas at least
partly out
of animus toward various protected concerted activities in which she had engaged. Since the
essence
of these claims lies in retaliation, they are governed by the well-established four-part test that
generally applies to alleged violations of Sec. 111.70(3)(a)3, Stats. Clark County, Dec. No.
30361-B (WERC, 11/03), at 15-16. Because retaliation against an

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Dec. No. 30965-A

employee for lawful, concerted activity inherently restrains other employees in the
exercise of such
rights, it is also a "derivative" violation of Section (3)(a)1.

To prevail on a retaliation/discrimination claim under Section (3)(a)3, the Union must
establish, by a clear and satisfactory preponderance of the evidence, each of the following
four
elements: (a) that the employee has engaged in lawful concerted activity (or was believed to
have
so engaged); (b) that the employer was aware of (or believed it was aware of) such activity
at the
time of the adverse action; (c) that the employer bore animus toward the activity; and (d) that
the
employer's adverse action against the employee was motivated at least in
part by that animus, even
if other legitimate factors contributed to the employer's adverse action. Muskego-Norway
School
District v. WERB, 35 Wis.2d 540 (1967) and; Employment Relations Dept. v. WERC, 122
Wis.2d 132 (1985).

A. Protected Activity

The first element of the foregoing test is largely undisputed here. Section 2 of the
Municipal
Employment Relations Act (MERA) gives municipal employees, including Thomas, ". . . the
right
to form, join or assist labor organizations, to bargain collectively through representatives of
their
own choosing, and to engage in lawful, concerted activities for the purpose of collective
bargaining
or other mutual aid or protection. . . ." These rights are fundamental to MERA's purposes
but, by
their very nature, the exercise of such rights can create tension between supervisors and
employees.
As catalogued in Conclusion of Law 3, above, Thomas engaged (or was believed by Kellogg
to have
engaged) in a series of activities during the relevant period of time that were either directly
associated with the Union or were for "other mutual aid or protection" (such as Kellogg's
belief that
she discussed with colleagues the idea that her hours had been reduced in retaliation for her
union
activities). Seeking union assistance to resolve work place problems, and using the
negotiations
process to raise job-related issues such as cold weather duty, an undesirable change in desk
orientation, employees working unpaid overtime, or performing duties beyond one's
classification,
are classic examples of conduct protected by Section 2 of MERA. The District at least
tacitly
acknowledges that these activities fall within the protection of the law and therefore meet the
first
element of the discrimination/retaliation claim.(2)

B. Knowledge of Protected Activity

The second element the Union must establish is that the District was aware of
Thomas'
protected activities at the time the District undertook the various alleged adverse actions. In

Page 19

Dec. No. 30965-A

this case, the earliest of the alleged prohibited practices was the District's action in
spring 2003,
based upon Kellogg's recommendation, to reduce Thomas' hours for the upcoming (2003-04)
school
year. At that time, Thomas had engaged in the first six of the protected activities set forth in
Conclusion of Law 3, above. As to several of the activities, Kellogg directly and explicitly
responded
to the protected activity and the District thus does not dispute Kellogg's timely awareness,
specifically: Thomas' participation in negotiations for the 2001-03 contract, Thomas'
comment
about her "head lice" duty during those negotiations in connection with the Union's
successful
efforts to obtain an upgrade, Thomas' resort to the Union for help in resolving the desk
orientation
issue, and Thomas' complaint to the Union that Kellogg included the agenda item "anything
Wayne
needs to know" during some of the early office staff meetings in the fall of 2002.

The record is less explicit about Kellogg's beliefs regarding Thomas' role in the cold
recess
complaint in the winter of 2001. It is clear that, at the time, Kellogg suspected the complaint
had
originated with Thomas, since he called her in and questioned her explicitly the next day,
while not
questioning any other employees. Fisa was also present at that meeting, but it is apparent
that
Kellogg did not suspect Fisa since he had delegated to her the responsibility for making cold
weather
decisions and would not have been likely to complain about her own decision to the Union.
In
addition, as set forth in Finding of Fact 12, above, Ryerson had called Kellogg during a
break in
negotiations to discuss the cold recess incident, and Kellogg was aware that Thomas was on
the
negotiating team. Even if, as it appears, Kellogg accepted Thomas' truthful assertion that
she had
not originated the complaint, Kellogg nonetheless continued to believe that Thomas had been
the
likely recipient of the complaint or at least the individual who had brought the issue to the
Union.
As Fisa testified, "He [Kellogg] knew that the complaint had come through her [but] at no
time
did he accuse Mrs. Thomas of making the original complaint." (Sept. Tr. 94-95). Kellogg's
contemporaneous statements in the meeting as well as his testimony at hearing reflected an
annoyance that Thomas, once aware of the issue, had not brought it to his (Kellogg's)
attention
before getting Ryerson involved. Accordingly, the Examiner is satisfied that Kellogg
believed that
Thomas had played a role in inducing negative feedback to Kellogg on the subject from
Ryerson.

An inference is also required in order to conclude that Kellogg believed Thomas had
played
a role in calling Ryerson's attention to Fisa's occasional off-schedule hours. As set forth in
Finding
of Fact 19, above, the District made ongoing efforts to keep hourly employees within their
schedules
and to avoid potential overtime liability. Fisa evidently was not the only employee causing
such
concern, but it is equally evident that her occasional working of extra hours on evenings and
weekends ­ which was done voluntarily and not submitted for overtime ­ was a
subject of discussion
at the bargaining table during the time that Thomas was on the team. Thomas was not the
source
of the Union's information regarding Fisa, but rather Pankratz had obtained this information
by
happenstance during a conversation with some District employees he encountered at a Friday
night
fish fry. There is no evidence, however, that Kellogg was aware of the precise source of
this
information. The record reflects only that, as was true of the cold recess issue, Ryerson
once again
telephoned Kellogg to investigate allegations (this time about Fisa's hours) that he had
learned
during negotiations. Again, Kellogg responded by promptly calling Fisa and Thomas into a
meeting,
directing them to

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Dec. No. 30965-A

maintain their regular schedules, requiring them to sign a statement acknowledging the
directive, and
removing their building keys as a method of enforcement. There is no evidence that Thomas
had
been the subject of any concern regarding hours, and Kellogg did not have similar meetings
with any
other employees in the building, even other hourly office employees, such as Matthews.
Accordingly, Kellogg's response to Ryerson's telephone call is difficult to understand without
an
inference that he believed Thomas had played a role in either conveying or discussing this
information during negotiations ­ both of which are protected under Section 2.
Absent other
persuasive explanations for Kellogg's response, the Examiner finds it appropriate to make
that
inference.

In sum, the Union has submitted sufficient evidence upon which to conclude that
Kellogg
was aware of Thomas' actual or attributed protected activity as outlined in Conclusion of
Law 3,
above.

C. Hostility/Animus toward Protected
Activity

The third element of a discrimination/retaliation claim ­ establishing that the
employer or
its agent harbored animus or hostility toward the employee's protected activity ­
generally poses a
difficult evidentiary hurdle, because the issue relates to a state of mind that may never have
been
verbalized to others or even consciously acknowledged. Instead, as here, the evidence
usually lies
in a composite of circumstances that indicate that the employer or its agents were bothered or
disturbed by the protected activity. "The exercise of examining inferences from the
circumstances
'draws upon the Commission's long experience in deciphering situations like the present
case, where
motives are largely unstated and indicia are entwined subtly within the circumstances,' and
lies
squarely within [the WERC's] specialized expertise." Edgerton Fire Protection District,
Dec.
No. 30686-B (WERC, 2/05), at 28, citing Village of Sturtevant, Dec. No. 30378-B (WERC,
11/03), at 19, and WERC v. Evansville, 69 Wis. 2d 140 (1975), at 150.

As to most of the protected activity outlined in Conclusion of Law 3, above, the
Examiner
has little difficulty concluding that Kellogg was unhappy with Thomas. It is true, as the
District
argues, that Kellogg does not appear to have borne animus toward Thomas for her
participation in
the Union's negotiation team, as such. However, the record amply demonstrates that
Kellogg was
annoyed when Thomas' Union activity ­ negotiations or otherwise ­ affected
him or his operations
directly. Thus, when Ryerson telephoned Kellogg at home about the alleged cold recess at
Howe,
Kellogg called Thomas into a meeting the very next day to confront her about her role in the
complaint having reached Ryerson. Even if, as Kellogg testified, he was interested in
emphasizing
the importance of resolving such problems before they reached higher levels, Thomas had a
right
under Section 2 of MERA to address this issue during negotiations. For purposes of the
third,
"animus," element, Kellogg's quick and emphatic reaction (which was also apparent in his
testimony) reflects a "thin skin" where work-related matters are being aired in the
negotiations
process activity.

Page 21

Dec. No. 30965-A

As discussed above, Kellogg evinced a similar hyper-sensitivity upon learning from
Ryerson
that Fisa's irregular work hours had been discussed during negotiations. He promptly called
a
meeting that included Thomas, for no apparent reason other than her connection with the
negotiations, and required both her and Fisa (but apparently no one else) to sign a statement
indicating an understanding of his directive. While Kellogg's issuing such a directive may
have been
entirely lawful (and in any case is beyond the one-year limitations period and therefore not at
issue
here), it does supply additional evidence that Kellogg was unhappy with Thomas' protected
activity,
where it intersected with his operation of the Howe School.

Particularly persuasive regarding Kellogg's attitude in this regard is his reaction to
Ryerson's
telephone call following the Union's intervention on Thomas' behalf regarding the orientation
of her
desk and computer at the beginning of the 2002-03 school year. Although Kellogg had twice
refused
to modify the arrangement when Thomas had approached him directly and had offered no
explanation for having changed the arrangement, Kellogg promptly convened a meeting with
Thomas and Fisa after Ryerson's call and told Thomas she could have her desk any way she
wanted
it. Assuming Kellogg had a legitimate reason for altering the arrangement to begin with and
for
refusing to reverse it when asked to do so by Thomas, this reaction to Ryerson's call (and
thus to the
Union's intervention) again evidences hypersensitivity. Even more significantly, Kellogg
thereafter
added to the regular staff meeting agenda the phrase, "anything Wayne needs to know."
This
language is strong evidence that Kellogg was irritated about Thomas and the Union
intervening with
Ryerson, and Kellogg's meandering testimony at hearing was not persuasive in supplying a
different
explanation for this phrase. (Sept. Tr. 189-92).

Kellogg also reacted immediately and directly to Ryerson's telephone call informing
him that
Thomas had indicated, in the course of negotiating over an upgrade to the Office Aide II
position,
that she had been given "head lice duty" at Howe. Although there was no indication that
Thomas
was currently or imminently performing this duty, such that she should immediately be given
a
contrary direction, Kellogg nonetheless -- consistent with his reactions in other circumstances
--
promptly called her into a meeting and directed her not to perform that duty. This reaction
warrants
a conclusion that, once again, Kellogg was not happy to receive such attention from the
Superintendent, and not reluctant to convey that message to Thomas. This conclusion is
reinforced
by Kellogg's including "Does work meet job description" as a regular agenda item for his
staff
meetings with Fisa and Thomas, where the record supplies absolutely no explanation for
Kellogg's
concern about job duties, other than the negative feedback he had received from Ryerson
about
Thomas' lice-checking duty.

Kellogg followed a similar pattern in early fall 2003 in responding to the grapevine
information that Thomas had told a fellow employee that Kellogg had reduced her (Thomas')
hours
in retaliation for the cold recess incident. Promptly upon Thomas' return to school, Kellogg
held
a meeting with her and Fisa. According to Kellogg's contemporaneous notes from that
meeting (Ex.
8), he devoted a significant portion to questioning Thomas about whether she had made that
statement, on the one hand, and defending his reduction recommendation, on the other.
Moreover,
after Thomas denied making the statement, Kellogg

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Dec. No. 30965-A

did not simply accept her denial but indicated he would return to his source for
"clarification." (Ex.
8). Kellogg contends that he legitimately wanted to help Thomas understand that the
reduction was
legitimate. However, leaving aside the potential unlawfulness of the questioning, which
occurred
outside the one-year limitations period and therefore is not actionable here, this incident is
further
evidence of Kellogg's tendency to react negatively to protected activity that might reflect
poorly
upon him.

In contrast, as to Kellogg's reaction to Thomas' protected activity in requesting
Union
representation for the meeting he called on December 17, 2003, there is neither specific,
direct
evidence that her doing so created additional animus, nor sufficient indirect evidence to
support a
reasonable inference to that effect. Accordingly, Conclusion of Law 6, above, does not
include
Thomas' request for Union representation among the protected activities to which Kellogg
has been
shown to have been hostile.(3)

Finally, the record reflects that Kellogg had become more distant and less
communicative
toward Thomas as the 2003-04 school year progressed. Thomas credibly testified that
Kellogg
avoided her except where necessary -- and Kellogg's own testimony suggests that, although
he may
not be particularly gregarious and certainly maintains a solid focus on school business, he did
regularly engage in conversations with other office personnel, with noon and recess aides,
and with
the bus aides. Little in the record explains the chill in his conversational relationship with
Thomas
beyond Kellogg's annoyance and distrust stemming from her protected activity, particularly
her
reporting information about Howe to "outsiders." This chill in the relationship is further
evidence
that Kellogg had developed animus toward Thomas' protected activities.

Accordingly, the Union has met its burden of demonstrating by a clear and
convincing
preponderance of the evidence that Kellogg harbored animus toward Thomas for the exercise
of her
MERA rights to engage in lawful, concerted activity.

D. Was the Adverse Action Unlawfully
Motivated?

It was not unlawful in itself for Kellogg to have developed animus or negative
feelings about
Thomas' protected activity. Such reactions are not uncommon, given that such activity by its
very
nature can be confrontational and challenging to an employer's and a supervisor's authority
over
work place issues. What is unlawful, however, is allowing those feelings to prompt adverse
action
against an employee, even if there are other, legitimate, reasons as well. Like the animus
element,
the "motive" or "causation" element of the retaliation/discrimination test is rarely
accompanied by
direct evidence, such as admissions of improper motivation. Rather, determining what
motive or
motives may have influenced an employer to take a particular action often depends heavily
upon an
experienced assessment of circumstances and probabilities and reasonable inferences
therefrom.
Circumstantial factors that can influence a finding of improper motive may include timing,
opportunity, failing to follow normal or

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Dec. No. 30965-A

expected procedures, and/or the insubstantiality or pretext of the claimed ostensible
motive. See
generally, Edgerton Fire Prevention District, Supra, at 19, and cases cited therein. In this
case,
the Union contends that Kellogg (and through him the District) did indeed allow his animus
to affect
his decisions regarding Thomas' employment in four specific ways.(4)

1. The 2003-04 reduction in
hours

The first alleged unlawful adverse action occurred in the spring of 2003, when
Kellogg
recommended that Thomas' hours be reduced for the upcoming (2003-04) school year. The
District
argues that Thomas was one of several bargaining unit members whose hours were reduced,
including the Union president, and that the reduction was the natural and logical result of
several
years of financial troubles in the District. The District accurately notes that the District had
developed an overall monetary target, that all building principals had been directed (as a
group) to
suggest budgetary cuts that would not undermine instruction, that other Office Aide positions
had
also lost hours, and that Thomas' position was a logical place to cut because of the
efficiencies
created by the automated lunch system. Finally, the District points out that, ultimately,
Thomas lost
only two hours per week, leaving her with a 28-hour work week that was sufficient to
maintain her
full time health and dental benefits.

The circumstances recited by the District carry considerable surface appeal. The
Examiner
does not doubt that the District's financial needs were genuine and that the initial impetus
resulting
in Thomas' reduction in hours did not originate with Kellogg, but rather with the Ryerson's
message
to principals that budget cuts were needed. Also militating in the District's favor regarding
the 2003-04 reduction is that Kellogg's most proximate written evaluation regarding Thomas,
dated March
7, 2003, rated her as "exceeds expectations," included several additional laudatory
hand-written
comments, and was overall more favorable than the evaluation from the previous year. In
addition,
on two occasions subsequent to the evaluation but more or less during the time frame in
which he
was considering reductions, Kellogg had orally reprimanded Thomas for "reading" some
confidential
documents she was photocopying and had given her a written reprimand her for helping
Eisberner
try to obtain physical control of a distraught child. A positive written evaluation followed by
two
incidents of ostensibly legitimate concern create a context in which Kellogg's animus toward
earlier
protected activity arguably took on a lower profile than other possible motivating factors.

The Examiner is also mindful that the Union must carry the ultimate burden of
establishing
improper motive as well as the other elements of the discrimination/retaliation charge by a
clear and
satisfactory preponderance of the evidence.

Page 24

Dec. No. 30965-A

Nevertheless, upon much reflection, the Examiner is persuaded that the record
establishes
by requisite standard of proof that Kellogg was not genuinely trying to cut costs by
recommending
Thomas' reduction in hours, but rather took the cost-savings directive as an opportunity to
make
working at Howe less remunerative for Thomas because he saw her as a problem within the
office
team, someone he did not trust, and someone who might be encouraged to transfer
voluntarily if her
situation at Howe were sufficiently unfavorable.(5) This conclusion is based upon two primary
considerations: first, the insubstantial, if not pretextual, basis for Kellogg's claim that the
school
needed Thomas for (as he initially proposed) five fewer hours per week; and second,
building on that
first premise, the lack of explanation in the record for why Kellogg would seize upon the
opportunity
other than his aggravation about Thomas' protected activity. Other considerations are also at
play,
as explained below.

Turning first to Kellogg's purported explanation for reducing Thomas' hours, it is
notable
that Kellogg was not under any mandate or directive to suggest any particular reduction or
amount
of savings. The principals as a group were asked to "brainstorm" possible places to cut
costs, which
did not have to be personnel-related. In response, Kellogg on his own generated the notion
of
reducing Thomas' hours. His stated justification was that the automatic lunch system had
greatly
reduced the amount of time she needed to spend on lunch program duties. It is significant,
in
assessing the authenticity of Kellogg's justification, that Kellogg initially had proposed to
Ryerson
that Thomas lose five hours per week (one hour per day). Ryerson advised Kellogg to limit
the
reduction to one-half hour per day (from 30 to 27.5 hours per week), and Kellogg did so.
Kellogg
continued to maintain at hearing that his initial five hour per week reduction was justified,
primarily
by the lunch automation. The fact that Ryerson, who had urged the principals to find ways
to reduce
costs, felt it appropriate to reject partially a cost-savings recommendation from Kellogg
indicates that
he (Ryerson) found Kellogg's five-hour reduction proposal less than persuasive. That alone
calls
Kellogg's motives somewhat into question.(6)

More importantly, however, the evidence ­ including that supplied by the
District ­ indicates
that the automated lunch system simply did not create the efficiencies that Kellogg attributed
to it
and did not warrant the proposed five-hour reduction. District witness Fisa as well as
Thomas
explained in some detail that, while less time was spent collecting money directly from
children
especially on Monday mornings, more time was needed under the new system for
recordkeeping and
running the lunchroom computer. Both witnesses testified that, on balance, the amount of
work was
about the same. In addition, the record indicates that Thomas did not handle the majority of
the
lunch program money collection prior to automation, but rather Fisa handled those duties.
Of
overriding significance, moreover, is the fact that, while proposing to remove five hours
from
Thomas for 2003-04, Kellogg was adding

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Dec. No. 30965-A

a fifth Noon Duty Aide for an additional 7.5 hours per week in the
lunch room. While Kellogg had
been seeking an additional Noon Duty Aide for some years without any ulterior design upon
Thomas' position, some additional explanation is needed for continuing to pursue this
personnel
increase while at the same time proposing a decrease in a current employee's position. Yet
Kellogg
clearly did not even consider assigning Thomas to those hours (or some hours) of Noon Duty
Aide
duty as a way of avoiding a reduction in her hours. This is particularly telling where, after
hiring a
fifth Noon Duty Aide, Kellogg had Noon Duty Aides run the automatic lunch program
computer in
the lunch room, work previously performed largely by Thomas ­ and work that
apparently continued
to be performed by the District's two other Office Aide IIs, neither of whom were
recommended for
or suffered an hours reduction. In its full context, therefore, Kellogg's decision to
recommend
reducing Thomas' hours by five (or even by two) for the 2003-04 school year cannot
reasonably have
been motivated by alleged efficiencies from the automated lunch program.(7)

The Examiner is also influenced by Kellogg's failure to provide any notice or
forewarning
to Thomas that her hours were in jeopardy, despite the administration's apparent instruction
to do
so (Aug. Tr. 173; see also, Aug. Tr. 112), especially for those employees (like Thomas)
whose
benefits might be affected by the reduction.. Such notice, or at least an informal discussion
within
the small office setting where Kellogg and Thomas encountered each other every day,
whether or
not required by the contract or by the administration, would seem normal and expected.
Here, such
a conversation may have led to a discussion about supplementing Thomas' reduced schedule
with
lunchroom duty or other mitigating measures. The absence of any such discussion, under the
circumstances present here, casts further suspicion upon Kellogg's attitude and motives.

As set forth above, proffering an insubstantial or pretextual basis for taking adverse
action,
coupled with a finding of animus toward the protected activity, is a strong indication that
animus
played a role in the adverse action. However, it is possible that something other than either
the
asserted reason (lunch program automation) or the animus toward her protected activity may
have
played a role. Here, for example, Thomas had received two reprimands

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Dec. No. 30965-A

during the time period in which Kellogg was making his reduction recommendation.
In addition,
the District suggests that Kellogg had a "personality conflict" with Thomas related to his
perception
that she had trouble maintaining confidentiality. Once again, however, upon close scrutiny
these
other potential factors are not sufficient to explain Kellogg's action, not only because there is
little
substance to them, but because, carefully considered, they themselves are built upon the
same
platform of unlawful animus.

The District correctly argues that a "personality conflict" in and of itself is not an
unlawful
reason for acting against an employee. Here, the record reveals Kellogg's apparent
perception that
Thomas was unreliable in terms of maintaining confidentiality. However, Kellogg's
impression to
that effect, especially prior to the spring of 2003, is supported by little if any evidence of
actual
breaches of confidentiality on the part of Ms. Thomas ­ other than those related to her
protected
activity in discussing certain work-related concerns with the Union and/or with Ryerson.
Kellogg
clearly disliked the fact that Thomas had (or he believed she had) discussed various issues
about
Howe school with outsiders before bringing them to his attention, as set forth in the
preceding
section of this Memorandum. While Thomas' 2003 evaluation included a hand-written
comment
about the importance of confidentiality, Kellogg offered no specific explanation for that
comment
at hearing. At the time of the evaluation, Thomas inquired about the comment and Kellogg
replied
that it was just a general reminder to everyone about the importance of confidentiality.
Subsequent
to the evaluation, Kellogg rebuked Thomas for looking at a document containing confidential
student
information in a manner that Kellogg interpreted as "reading" it. The evidence indicates that
Kellogg's assumption about Thomas' behavior was erroneous, since, in fact, she was
following
directions to photocopy only certain pages of the document and was simply looking for the
correct
pages. Kellogg's inaccurate assumption about Thomas' conduct in that instance (and his
failure to
investigate before reprimanding) appears more likely to have been an effect than a cause of
Kellogg's
distrust, which, on this record, was largely if not entirely based upon Thomas' protected
activity.
Similarly, Kellogg's May 15, 2003 written reprimand, ostensibly in response to Thomas
having
helped Eisberner obtain physical control over a distraught child, included language about
confidentiality. Nothing about the incident in itself or any references to it in the record
explains why
Kellogg included the confidentiality language. Once again, the explanation appears to lie in
Kellogg's subjective views of Ms. Thomas' trustworthiness, subjective views that, on this
record,
appear to have resulted from his hostile reaction to her protected activity.(8)

In short, the Examiner is satisfied that the Union has met its burden to establish that
Kellogg
was motivated to propose that Thomas' hours be reduced for the 2003-04 school year at least
in part
because of his animus toward her protected activity. The District contends, however, that,
even if
Kellogg was so motivated, there is no evidence that Ryerson or the

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Dec. No. 30965-A

District School Board harbored animus or improper motives, and, since they ultimately
were
responsible for implementing the reduction, the Union ought not prevail against the District
on this
issue. The District notes that Ryerson persuaded Kellogg to limit the proposed reduction to
2.5
hours per week instead of five. After the District's notified Thomas of her reduction and
received
the Union's protest, the District added one-half hour per week to her schedule to bring her to
the 28
hours necessary for full benefit status, further demonstrating the District's lack of animus.

The Examiner agrees that the record does not reflect animus on the part of Ryerson
or other
District officials. However, the Commission has long rejected the notion that an intervening
layer
of decision makers insulates a municipal employer from liability for prohibited practices
instigated
by their agents. In Northeast Wisconsin Technical College, Dec. No. 28954-C (WERC,
3/99),
the Commission stated:

We also reject the College's view that it is insulated from liability for the acts of its
agents because the ultimate decision-makers were Board members. The Board's
agents set the layoff in motion. Without their layoff recommendation, the record
gives us no substantial basis for concluding the layoff would still have occurred.
Under such circumstances, the College is culpable as a municipal employer based on
the acts of its agents.

Id. at 10. Even in situations like the instant one, involving "one manager acquiescing
in the
recommendation of a subordinate manager, where both managers exercised some independent
discretion," the Commission will hold the municipal employer liable if the evidence indicates
that
the subordinate manager with the unlawful animus "instigated" or "set in motion" the process
culminating in the adverse action. D.C. Everest Area School District, Dec. No. 29946-M
(WERC, 6/04), at 40-42. In this case, it is obvious that, absent Kellogg's recommendation,
Ryerson
would not have selected Thomas for a reduction in hours, even the more limited reduction
that
eventually occurred. Kellogg's animus therefore was a contributing factor in the District's
ultimate
action and the District is legally responsible for the underlying prohibited practice.

Accordingly, the Examiner concludes that the District's decision to reduce Thomas'
hours
for the 2003-04 school year was motivated at least in part by animus toward her protected
activity,
in violation of Secs. 111.70(3)(a)3 and 1, Stats.

2. The December 19, 2003
Meeting

As described above, Thomas engaged in further protected activity after her hours
were
reduced for the 2003-04 school year. During the summer, the Union had protested her
reduction and
prevailed upon Ryerson to add a half hour per week so she could maintain her benefits.
Thomas may
have complained to colleagues that she thought the reduction had been retaliatory, or Kellogg
at least
believed that to have occurred and confronted her about it at the beginning of the school
year. In
addition, in late September and October, Thomas complained

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Dec. No. 30965-A

to the Union's business representative, who in turn complained to Ryerson who
telephoned Kellogg,
about Kellogg's rearrangement of her desk/computer and about Kellogg's including the item,
"Anything Wayne needs to know" on the agenda for the regular office staff meetings. By
late fall
of 2003, it is clear from Kellogg's reactions that Thomas' conduct had maintained and added
to
Kellogg's irritation with her.

This is the backdrop against which the events of December 2003, culminating in the
disciplinary meeting and reprimand, must be considered. Were these actions motivated
solely by
legitimate concerns, or did Kellogg's animus toward Thomas for her protected activity play
at least
some part? On this issue, the determination is relatively straightforward, both because there
was so
little legitimate basis for Kellogg's actions and because so much of his reaction can be
explained
only in terms of his underlying, unlawfully generated, distrust of Thomas.

As to the alleged misconduct regarding Fisa's time sheet, the record reflects (as
recounted
in Findings of Fact 38 and 39) that Kellogg had developed a special procedure for handling
Fisa'
time sheet that was designed to avoid Thomas becoming aware of the time sheet's contents.
Why?
The only explanation reasonably supported by this record is that, since the time sheet would
show
an irregular hour arrangement for Fisa and since Kellogg believed Thomas had reported
Fisa's
irregular hours in the past, he wanted to avoid Thomas being in a position to do so again.
Circumventing Thomas in this manner is not unlawful, any more than it was unlawful, in
itself, for
Kellogg not to trust Thomas based upon her protected activity. What was unlawful,
however, was
Kellogg's angry overreaction upon learning that the scheme may have gone awry and that
Thomas
may have seen the time sheet despite his effort at preventing that. Kellogg brought Thomas
in, made
it clear that he was upset with her conduct, and, once she obtained a Union representative,
accused
her of invading Fisa's privacy by opening the envelope containing her time sheet.

Since Thomas regularly opened inter-office mail, regularly saw other employees' time
sheets,
and had been enlisted to help Matthews locate the misplaced envelope that morning, and
since
Thomas had not been alerted to any special privacy concerns regarding that envelope, it is
difficult
for the Examiner to conclude that any actual misconduct had occurred. While it is not
unlawful
retaliation for a supervisor simply to have poor judgment or mistakenly assess an employee's
conduct, it is unlawful if those judgments or assessments are influenced by unlawful animus.
It
seems clear in this case that Kellogg would not have found Thomas' behavior so perturbing
if he
were not viewing it through the lens of distrust generated by what he believed to be her
previous
protected activity in discussing Fisa's hours with the Union. His real concern is underscored
by a
comment that he added to the reprimand: "Other information heard in the office and is
confidence
[sic] in nature should NOT be shared." The situation had no overtones of Thomas
inappropriately
sharing confidential information. Thus the comment serves only to reveal Kellogg's
hypersensitivity
to the possibility that Thomas might share information about Fisa with the Union, as she had
(he
thought) in the past. Accordingly, even if Kellogg genuinely (though unreasonably) believed
that
Thomas had inappropriately intruded on the privacy of Fisa's time sheet, the Examiner is
satisfied
that he would not have reacted as harshly if he were not also harboring animus related to
Thomas'
earlier protected activity.

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Dec. No. 30965-A

As to the angry grandmother incident, it appears to the Examiner that this played a
secondary
role in the meeting and the reprimand; the time sheet incident was more proximate in time
and
appears to have precipitated the meeting. For that reason, even if Kellogg's concerns about
the angry
grandmother incident were wholly genuine, substantial, and lawful, that incident clearly
would not
in and of itself have prompted the meeting or the discipline. For purposes of the "in part"
test for
unlawful motive, it is sufficient that Kellogg's animus influenced his reaction to the time
sheet
incident, and that the time sheet incident contributed to the meeting and the reprimand.
Nonetheless,
it is worth noting that the record does not reflect any actual misconduct on Thomas' part in
the angry
grandmother incident. Thomas copied a document as requested, gave the original back to the
grandmother, and asked Fisa what to do with the copy. Fisa, without any fault on her part,
misunderstood the situation and told Thomas to file it. Thomas filed it. There's no evidence
whatsoever that anyone had told Thomas to give a copy to Eisberner. That this incident
could result
in discipline is hard to understand, except in the context of Kellogg's negative feelings
toward
Thomas, which have been found to include animus toward her protected activity.

Thus, the Union has established to the Examiner's satisfaction that the December 17,
2003
meeting and reprimand were adverse actions prompted at least in part by Kellogg's animus
toward
Thomas' lawful, concerted activity and thus violated Sec. 111.70(3)(a)3 and 1, Stats.(9)

3. Lack of Interpersonal Communication from
Kellogg

The Union contends that the District took a third form of retaliatory adverse action
against
Thomas when Kellogg more or less stopped communicating with her except as absolutely
necessary.
According to the Union, this "chill" may have begun in earlier years, but had reached a peak
by April
2004, creating a hostile working environment for Thomas in order to encourage her to leave
the
school. The District denies that this occurred, offering evidence that Thomas was
"oversensitive"
and that Kellogg was not very "chatty" in the work place in general.

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Dec. No. 30965-A

As indicated in Finding of Fact 42, and discussed in the animus section, above, the
record
supports the Union's contention that Kellogg was intentionally keeping a distant and strictly
professional relationship with Thomas by April 2004, and that he was less socially interactive
with
her than with other office employees, noon, recess and bus aides. The Examiner does not
doubt that
working in a small office environment where one's supervisor is cold and distant can be
difficult and
hurtful. However, the record does not support a conclusion that the atmosphere was so
miserable
for Thomas as to inhibit her ability to perform her job. As the Commission has observed,
"Concerted activity by its nature often occurs in tense, confrontational, or chilly
atmospheres, and
some intemperance is to be expected in those situations." Village of Sturtevant, Dec. No.
30378-B (WERC, 11/03), at 25. In that case, the Commission was addressing the lawful
boundaries
of an employee's remarks to a supervisor, while in the instant case it is a supervisor's words
(or lack
of words) that is under consideration. Some latitude in expressing feelings is also permitted
to
management personnel in situations involving protected activity, provided the expressions fall
short
of threats or coercion.(10)

Drawing that line can be difficult, but the Examiner is satisfied that MERA
does not require a supervisor to remain socially amiable or "chatty" with an employee who
has
repeatedly caused him difficulties, albeit in a fully protected manner.

Accordingly, the Examiner concludes that Kellogg's lack of anything more than
strictly
professional communication with Thomas during the one year period prior to filing of the
instant
Complaint is not an adverse action within the scope of Section (3)(a)3 of MERA.

4. The 2004-05 Reduction in
Hours

In the spring of 2004, as in the previous school year, the District again sought
recommendations for budget cuts from school administrators. As in the previous year,
principals
were not given specific targets but were asked to avoid affecting the instructional program.
Again,
the only cut that Kellogg recommended for Howe was for Thomas to lose an additional eight
hours,
reducing her from 28 to 20 hours per week. Based on the experience of the previous year,
when the
District's personnel office had increased Thomas' hours from 27.5 to 28 in order for her to
retain her
benefits, Kellogg certainly was aware at the time he made the recommendation for the
2004-05
school year that Thomas' benefits would be affected. He again did not consider reducing the
recently
hired fifth Noon Duty Aide and consolidating those duties with Thomas'. He again did not
discuss
his recommendation with Thomas at any time or provide her with any formal or informal
notice,
despite the loss of benefits that she would experience. The reduction required Thomas to pay
a
prorated portion of her health insurance premium and lost eligibility for dental insurance
entirely.

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Dec. No. 30965-A

Kellogg again cited the efficiencies from the automated lunch program as the primary
basis
supporting his conclusion that Thomas' duties would not require more than 20 hours per
week. By
the spring of 2004, the automated lunch program had been in place for over two years. As
discussed
in above in connection with the 2003-04 reduction, automation had not created enough
efficiencies
to justify even the ultimate the ultimate two hour reduction the previous year; nothing in the
record
indicates that anything about the program became significantly more efficient during
2003-04.
While Kellogg's transfer of running the lunch program computer from Thomas and Fisa to
the Noon
Duty Aides may have been facilitated by adding a fifth Noon Duty Aide while decreasing
Thomas'
hours, that "efficiency" was itself facilitated by the first reduction in Thomas' hours; as a
product
of Kellogg's unlawful conduct, it cannot provide a justification for an additional reduction in
Thomas' hours. As in the previous year, neither of the other two schools with full time
Office Aide
IIs cut those positions, despite their lunch programs having been similarly automated. In at
least one
of those schools, the Office Aide II continued to operate the lunchroom computer. (The
record does
not indicate how that was handled in the other school). While the District rightly points out
that the
Office Aide IIs did not necessarily perform the same set of duties in each of the three
schools, and
while this factor therefore would not be particularly meaningful standing alone, it does tend
to
support the conclusion that the lunch room automation remained a pretextual rationale for
reducing
Thomas' hours in 2004-05.

Kellogg also cited other efficiencies he had implemented in the office as a basis for
reducing
Thomas' hours. Instead of having Thomas open and inventory instructional materials that
teachers
had ordered, he had the teachers themselves do so. Instead of Thomas hand-delivering
messages
about replenishing student lunch accounts to the students' classrooms, Kellogg had her place
those
messages in the teachers' mailboxes. Rather than Thomas distributing catalogs and
magazines to
teachers' mailboxes, especially at the beginning of the year, he had her place the materials
on tables
for teachers to look through. It is not clear whether these efficiencies were initiated during
the 2003-04 school year or earlier. Regardless, the Examiner is not persuaded that they
could amount to more
than a minimal time savings in Thomas' overall work day and hence is not persuaded that,
absent
Kellogg's animus toward Thomas, these efficiencies would have led him to recommend an
additional eight hour reduction in her work week.

The Examiner is also influenced by the fact that, when the hearing in this case
reconvened
in the fall of 2004, the evidence demonstrated that, contrary to Kellogg's assertion that the
school
simply did not need Thomas for more than 20 hours per week, the reduction in Thomas'
hours was
having a clearly detrimental impact on office productivity. The District had implemented
registration fees, which would normally fall within Thomas' financial record-keeping duties,
and the
office personnel were having difficulty accomplishing this work. There were occasions when
the
work of opening and distributing daily mail was not completed. Sarah Matthews ­
whose job
responsibilities as Health Aide and Instructional Aide did not encompass office assistance,
was being
called upon regularly to help out with office duties. While Kellogg suggested that the work
would
even out as the school year went on, one would normally expect that busy times as well as
slower
times would be taken into account in

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Dec. No. 30965-A

determining office staffing needs. Contrary to Kellogg's assertion, therefore, the
Examiner is
persuaded that the office could not readily absorb the loss of eight hours per week of
Thomas' time.

Other circumstances support the Examiner's conclusion that Kellogg's
recommendation to
reduce Thomas' hours for 2004-05 was prompted at least in part by his animus toward her
protected
activity. One consideration is that Kellogg's unhappiness with Thomas appears to have
reached its
high point during the spring of 2004, such that he was withholding all but strictly
professional
communication. As discussed in the preceding section, Kellogg's chilly attitude toward
Thomas was
not in itself unlawful. However, it certainly indicates that the animus he had been
developing over
the past years had not abated. The Examiner also notes that Thomas' evaluation of February
2004,
while not negative, was discernibly less positive than in previous years and, unlike previous
years,
was devoid of any commentary. Similarly, as in the previous year, Kellogg may have had
no
contractual duty to offer Thomas any Noon Duty Aide hours or to discuss the reduction with
her
beforehand; yet his failure to offer these courtesies reflects an insensitivity that is hard to
understand
except in terms of his animus. None of these circumstances are very weighty in themselves,
but, in
combination with all of the other circumstances, and the insubstantial or pretextual reasons
advanced
by Kellogg, they create a persuasive picture of animus-driven action.

For all of the foregoing reasons, the Examiner concludes that Kellogg's
recommendation that
Thomas' hours be reduced for the 2003-04 school year was motivated at least in part by his
animus
toward her protected activity, and thus violated Secs.111.70(3)(a)3 and 1, Stats.

II. The Section (3)(c) Allegation

In addition to holding the District responsible for the results of Kellogg's
unlawfully-motivated actions, the Union has alleged that Kellogg should be held individually
responsible under
Sec. 111.70(3)(c) for inducing the District to take unlawful action. Section (3)(c) provides as
follows:

It is a prohibited practice for any person to do or cause to be done on behalf of or in
the interest of municipal employers or municipal employees, or in connection with
or to influence the outcome of any controversy as to employment relations, any act
prohibited by para. (a) or (b).

The Commission has recently interpreted the analogous provision in the State
Employment
Relations Act (SELRA), Sec. 111.84(3), Stats., as "intended to reach individuals or entities
who
cause unfair labor practices but who are not within the reach of either subsection (1) as an
employer
or subsection (2) as an employee or a union." Council 24 and State of Wisconsin, Dec. No.
31397-C (WERC, 6/07), at 18. Subsections (1) and (2) of SELRA are analogous to Sections
(3)(a)
and (b) of MERA. The Examiner sees no reason to reach a different interpretation of
MERA than
the Commission has provided for SELRA's

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Dec. No. 30965-A

analogous language. Since Kellogg was acting within the scope of his authority as an
agent of the
District in taking the actions at issue here, and since the District is within the reach of
Section (3)(a)
of MERA, Kellogg is not subject to individual responsibility under Section (3)(c).

Accordingly, the alleged violation of Sec. 111.70(3)(c), Stats., has been dismissed.

III. Remedy

As provided in the Order, above, the Examiner has directed the District to provide
the
conventional remedy for violations of Section (3)(a)3, i.e., to rescind the unlawful actions,
restore
the employee to the position she would have been in had the employer not acted unlawfully,
reimburse the employee for lost wages and benefits attributable to the unlawful actions, and
post a
notice to employees. See, e.g., Clark County, Dec. No. 30361-B (WERC, 11/03), at 17.

In this case, the remedy includes a requirement that the District offer to restore to
Beth
Thomas the 10 hours per week of work as an Office Aide II by which her hours were
unlawfully
reduced (by two beginning in 2003-04 and by an additional eight beginning 2004-05), along
with
all seniority and other rights and privileges associated with those additional 10 hours. It also
requires
the District to make Thomas whole for all wages and benefits she lost due to the District's
unlawful
reductions of her hours, plus interest at the statutory 12% per year rate from the dates of the
respective initial reductions to the date she is offered the restoration of hours pursuant to the
Order.

2 Whether or not Thomas actually
engaged in some of the protected activity that Kellogg attributed to her, it is sufficient
for purposes of a retaliation claim that Kellogg believed that she had done so if that belief
influenced any adverse actions
he may have taken against Thomas. The District does not argue otherwise. Here, the record
indicates that Thomas had
not actually made the complaints about the cold recess at Howe or about Fisa's irregular
work hours, but, as discussed
below in the Memorandum, the Examiner is satisfied from Kellogg's reactions and comments
that he believed both that
Thomas had played a role in these issues coming to the attention of Superintendent Ryerson
and that such was
inappropriate without bringing the concerns first to Kellogg.

3However, as
discussed in the following section, the meeting and the resulting verbal reprimand were
overreactions
on Kellogg's part to the events involved and were partially provoked by Kellogg's hostility to
what he perceived as
Thomas' propensity for telling tales "out of school" ­ i.e., to the Union.

4 As noted earlier, Thomas had been uncomfortable about Kellogg's
reactions to her protected activity for some time
prior to May 20, 2004, when the Complaint was filed, and several of the prohibited practices
alleged in the Complaint
related to events that occurred more than one year prior to filing. The allegations were
dismissed as non-actionable if
they occurred outside the one year limitations period. However, the parties were permitted
to submit evidence regarding
the earlier conduct to support or refute the alleged prohibited practices that had occurred
within the one year limitations
period.

5 The contract permitted more senior
employees whose hours were reduced below 28 to "bump" less senior employees
holding full time positions.

6 The record does not indicate why Ryerson rejected Kellogg's
recommendation for a five-hour per week reduction or
what explanation he may have offered at the time..

7 The District argues that Kellogg
should not be faulted for failing to offer additional lunchroom hours to Thomas in
lieu of a reduction in hours, because Noon Duty Aide was a different job category and
therefore such an offer would
have required union authorization, and because neither Thomas nor the Union asked for the
hours to be assigned to
Thomas. As to the first argument, it is clear that Noon Duty Aide, like Office Aide II, was
a bargaining unit position
and that numerous employees filled positions combining two jobs. For example, Matthews
was a Health
Aid/Instructional Aide. As to the second argument, what is at issue here is Kellogg's
thought process and motivation.
What the Examiner finds damaging to the District's position is that Kellogg was proposing a
more drastic cut to
Thomas' position than the Superintendent thought warranted, even though the Superintendent
had initiated the cost
cutting directive, and that Kellogg was doing so while at the same time he was adding 7.5
hours of bargaining unit work
that Thomas was capable of performing but that he did not offer her. This was an intentional
effort to harm Thomas,
regardless of what the Union might or might not have agreed to had Thomas been offered the
combined job. In addition,
by the time Thomas returned to work at the outset of the 2003-04 school year and became
aware of the additional Noon
Duty Aide position, Thomas' hours had been restored to 28, the threshold that maintained
her eligibility for full
insurance benefits, thus making her testimony quite plausible that she did not have an
incentive to ask for what would
have amounted to the layoff of a newly-hired Noon Duty Aide.

8 Kellogg testified that he believed that Ms. Thomas intentionally
attempted to eavesdrop on conversations in his office
and that he observed her gradually and intentionally position herself at the end of the office
counter closest to his office
at times when her work did not warrant that location. The Examiner credits Thomas'
testimony that such did not occur,
at least insofar as Kellogg portrayed it as an intentional attempt at eavesdropping.

9 The Union also contends that, beyond reprimanding Thomas on
December 17, Kellogg also removed "confidential
duties" from her at that time. The Examiner doubts that removing confidential duties, in the
instant context, would
amount to actionable "adverse action," given the District's generally recognized right to
assign and distribute duties,
especially those that are reasonably within the confines of bargaining unit work, and the lack
of evidence to suggest that
losing confidential duties would have an adverse impact upon Ms Thomas. In any event, as
set forth in Finding of Fact
47, the record does not support the Union's claim that any significant duties were removed
from Thomas as a result of
the December 17 meeting. She continued to be primarily responsible for opening and
distributing mail, she apparently
continued to handle time sheets and record leave time, and, even assuming that Kellogg did
restrict her from
photocopying or filing confidential documents after December 17, it is not evident that such
work ever comprised a
significant portion of her duties. Accordingly, the Union's claim in this regard fails for lack
of evidence.

10 See, e.g., Ashwaubenon Schools,
Dec. No. 14474-A (WERC, 10/77) and Janesville Schools, Dec. No. 8791
(WERC, 3/69). (In recognition of the employer's free speech rights and of the general
benefits of "uninhibited" and
"robust" debate in labor disputes, employer remarks which inaccurately or critically portray
the employee's labor
organization and thus may well have a reasonable tendency to "restrain" employees from
exercising the Sec. 111.70(2)
right of supporting their labor organization generally do not violate Sec. 111.70(3)(a)1,
Stats., unless the remarks contain
implicit or express threats or promises of benefit.)